CORAM
Yargata Byenchit Nimpar Justice of the Court of Appeal
Binta Fatima Zubairu Justice of the Court of Appeal
Uwabunkeonye Onwosi Justice of the Court of Appeal
PARTIES
1. THE EXECUTIVE GOVERNOR OF OYO STATE
2. THE ATTORNEY GENERAL AND COMMISSIONER OF JUSTICE, OYO STATE
3. HON. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY MATTERS, OYO STATE
APPELLANTS
1. PRINCE MUHAMMED KABIR OLAOYE
2. OGBOMOSHO NORTH LOCAL GOVERNMENT
3. THE TRADITIONAL COUNCIL OF OGBOMOSO NORTH
4. PRINCE AMOS OLAWOLE OLAOYE (JP) (MOGAJI OLAOYE RULING HOUSE OF SOUN CHIEFTAINCY, OGBOMOSO)
5. CHIEF S.S. OTOLORIN (JP) (AREAGO OF OGBOMOSHO LAND AND CHAIRMAN, KINGMAKERS OF SOUN CHIEFTAINCY, OGBOMOSO)
6. CHIEF SALAWU AJADI (JAGUN OF OGBOMOSO LAND)
7. CHIEF TIJANI ABIOYE (BAARA OF OGBOMOSO LAND)
8. CHIEF DAVID ADENIRAN OJO (IKOLABA OF OGBOMOSO LAND)
9. CHIEF YUSUF KASALI OLADIPUPO (ABESE OF OGBOMOSO LAND)
10. PASTOR AFOLABI GHANDI OLADUNNI OLAOYE
RESPONDENTS
AREA(S) OF LAW
CONSTITUTIONAL LAW, CHIEFTAINCY MATTERS, ADMINISTRATIVE LAW, EVIDENCE, JURISDICTION, PRACTICE AND PROCEDURE, CUSTOMARY LAW, DECLARATORY RELIEFS
SUMMARY OF FACTS
This case concerns the determination of who would become the Soun of Ogbomoso following the demise of Oba Oladunni Oyewumi Ajagungbade III on December 12, 2021. The Laoye Ruling House was next in line to produce a candidate for the throne according to the rotational principle established in the Soun of Ogbomoso Chieftaincy Declaration of 1958 (Exhibit KB4).
The 1st Respondent (Claimant at the trial court) instituted a suit challenging the selection, appointment, and approval of the 10th Respondent (Pastor Afolabi Ghandi Oladunni Olaoye) as the Soun of Ogbomoso, claiming that the 10th Respondent was not qualified to ascend the throne as he was neither a direct son nor grandson of a previous Soun of Ogbomoso whose father or grandfather had been buried at “Oju abatan” in the palace.
The 1st Respondent also alleged irregularities in the nomination process, claiming that the 11th Kingmaker was excluded from voting for the two candidates purportedly shortlisted from a list of 23 aspirants, which he claimed were wrongfully forwarded to the kingmakers by the 2nd Respondent, as against the eleven candidates recommended by the Olaoye Ruling House.
The High Court of Oyo State, sitting at Ogbomoso Judicial Division, entered judgment in favor of the 1st Respondent, holding that the nomination of the 10th Respondent by the Laoye Ruling House, his selection/appointment by the 5th-8th Respondents, and his approval by the 1st Appellant were illegal, void, and should be set aside. The trial court also restrained the 10th Respondent from parading himself as Soun of Ogbomoso.
Dissatisfied with this decision, the Appellants filed an appeal.
HELD
1. The appeal was allowed.
2. The Court held that the trial Court lacked jurisdiction to entertain the 1st Respondent’s suit as he failed to comply with the condition precedent in Section 20(2) of the Chiefs Law of Oyo State, which required him to make representations to the Governor before instituting legal action.
3. The Court found that the 1st Respondent failed to prove his case to warrant the grant of the declaratory reliefs sought, as he did not establish that the 10th Respondent was not qualified to be the Soun of Ogbomoso.
4. The Court held that the trial Court erred when it raised suo motu the issue of nomination of more than one candidate by the Laoye Ruling House and based its judgment on that issue without giving the Appellants an opportunity to be heard.
5. The Court further held that the trial Court was wrong in departing from its previous decision in Suit No. HOG/20/2022, where it had held that the emergence of the 10th Respondent as Soun of Ogbomoso was regular, legal, and valid.
6. The judgment of the High Court of Oyo State was set aside, and costs of N500,000.00 were awarded against the 1st Respondent in favor of the Appellants.
ISSUES
1. Whether the 1st Respondent made out a case to warrant the grant of the reliefs sought in his Amended Statement of Claim based on his pleadings and the evidence led at plenary?
2. Whether the lower Court was wrong in holding that the emergence of the 10th Respondent as Soun of Ogbomoso was irregular, illegal, invalid, null and void?
3. Whether the lower Court was wrong in departing from its previous decision in Suit No. HOG/20/2022: Alhaji Adeyemi Taofiq Akorede Olaoye v. Pastor Afolabi Ghandy Olaoye & Ors., wherein the same Court held that the emergence of the 10th Respondent as Soun of Ogbomoso was regular, legal and valid?
4. Whether the lower Court was wrong when it raised suo motu the issue relating to the nomination of more than one candidate by the Laoye Ruling House to the Kingmakers for consideration and selection to the stool of Soun of Ogbomoso and based its judgment on that issue without availing the Appellants an opportunity to be heard in that regard?
5. Given the non-compliance by the 1st Respondent with the condition precedent stipulated in Section 20(2) of the Chiefs Law, Cap. 28, Laws of Oyo State, 2000, whether the lower Court was wrong in entertaining and determining the 1st Respondent’s suit.
RATIONES DECIDENDI
CONDITION PRECEDENT – FAILURE TO COMPLY WITH CONDITION PRECEDENT DEPRIVES COURT OF JURISDICTION
The initiation of a suit upon the fulfilment of a precondition is one, the absence of which divest the Court of jurisdiction. In the absence of the fulfilment of the condition precedent the Court lacks jurisdiction. In the case of AGUMA VS. A.P.C. (2021) 14 NWLR (PT. 1796) 351 AT 398-401, and it was held thus: ‘It is a condition precedent and fundamental to activate the jurisdiction of trial Court that a party must exhaust the internal administrative remedies provided in the constitution of the political party before filing his action in Court, failing to so comply would make the institution of the action in the first place premature, because a vital precondition to filing such action amounted to putting the cart before the horse and robs the Court of the jurisdictional competence to entertain the action.’ – Per YARGATA BYENCHIT NIMPAR, J.C.A.
JURISDICTION – WHEN A CONDITION PRECEDENT IS NOT FULFILLED
A case must therefore come before the Court when initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction… Therefore, the arguments canvassed by the 1st Respondent is pedestrian and misconceived and must be discountenanced. The Court below lacked the jurisdiction to entertain the suit instituted by the 1st Respondent. – Per YARGATA BYENCHIT NIMPAR, J.C.A.
CHIEFTAINCY DECLARATION – EFFECT AND PURPOSE OF A CHIEFTAINCY DECLARATION
A chieftaincy declaration according to the Supreme Court in the case of GOVERNOR OF OYO STATE VS. FOLAYAN (1995) 8 NWLR PART 413 PAGE 292, held thus: ‘By Section 4(2) of the Chiefs Law. Cap. 21 Laws of Oyo State 1978, a Chieftaincy Declaration is a statement of the customary law relating to the appointment etc of a recognized Chief. It follows therefore, that any question relating to such a declaration is a chieftaincy question.’… By its very nature, the essence of Chieftaincy Declarations is to stop the need for frequent calling of evidence in proof of the customary law and traditions of the people in relation to any particular recognized chieftaincy title/stool or throne as in this very case.– Per YARGATA BYENCHIT NIMPAR, J.C.A.
ADMISSION AGAINST INTEREST – EFFECT OF ADMISSION AGAINST INTEREST
The 1st Respondent cannot just allege that the 10th Respondent is not the great grandson of a previous Soun of Ogbomoso and leave it for the defendant to proof or for the Court below to assume. He ought to prove that the 10th Respondent’s genealogy and whatever proof he has. The evidence in the records had not shown that. Even if there was admission and there was none that the 10th Respondent was not a great grandson of a previous Soun, it cannot replace the failure of the 1st Respondent to prove the declaratory reliefs sought before the Court below.– Per YARGATA BYENCHIT NIMPAR, J.C.A.
BURDEN OF PROOF IN CIVIL CASES – CLAIMANT MUST PROVE HIS CASE ON PREPONDERANCE OF EVIDENCE
Proof in all civil matters is on the preponderance of evidence, this has been reiterated by the apex Court in plethora of judicial authorities that the onus of proof in a civil matter lies on the Claimant, he is expected to establish his case to the satisfaction of the trial Court determining the case.– Per YARGATA BYENCHIT NIMPAR, J.C.A.
DECLARATORY RELIEFS – BURDEN OF PROOF ON CLAIMANT SEEKING DECLARATORY RELIEFS
The 1st Respondent sought for declaratory reliefs which were granted by the Court below. It is worthy of note that in an action for declaration of a right, the Claimant must lead credible evidence that he is entitled to the rights claimed. It is not granted for the asking or on the admission or weakness of the Defendant’s case. A Claimant is bound to establish his entitlements to the relief sought to the satisfaction of the Court by cogent evidence. – Per YARGATA BYENCHIT NIMPAR, J.C.A.
RAISING ISSUES SUO MOTU – NEED TO AFFORD PARTIES OPPORTUNITY TO BE HEARD
The Appellants’ counsel argued that the trial Court made a case for the 1st Respondent suo moto and failed to afford other parties the opportunity to address the Court on the new issue… Having relied on the above judicial authorities, I therefore hold that they erred in law, and failed to afford the adverse party in this case, the Appellants to address it on the issue of nomination of one candidate by a ruling house as envisaged by Exhibit KB4. In fact, the issue was not the case of the 1st Respondent. It became an escape route for the Court abandoning its sacred duty to stick to the case of the parties.– Per YARGATA BYENCHIT NIMPAR, J.C.A.
UNDERTAKING – EFFECT OF SIGNING AN UNDERTAKING
By signing the undertaking to be bound by whatever decision the family takes, the 1st Respondent had invariably suspended Exhibit KB4 and waived his right of exercising redress… More so, the 1st Respondent cannot approbate and reprobate at will, he must be consistent in his case as he bears the burden of proving his case having sought declaratory reliefs before the Court below… Therefore, having relinquished his right by signing an undertaking, the 1st Respondent is to be bound by the decision of the family having stated that there was compliance with the law they left in abeyance.” – Per YARGATA BYENCHIT NIMPAR, J.C.A.
STARE DECISIS – TRIAL COURT DEPARTING FROM ITS OWN PREVIOUS DECISION ON SAME SUBJECT MATTER
The Suit No. HOG/20/2022: ALHAJI ADEYEMI TAOFIQ AKOREDE OLAOYE VS. PASTOR AFOLABI GHANDY OLAOYE & ORS delivered on the 3rd of October, 2023 and this current one was delivered on the 25th of October, 2023 by the same judge and on the same subject matter. While the one of 3rd of October, 2023 upheld the process and procedure that produced the 10th Respondent, the one of 25th of October, 2023 invalidates same. These are two conflicting decisions delivered within a month… The departure of the trial Court from its earlier decision was unconstitutional, unilateral and a clear departure from his duty as an impartial umpire. The trial judge lacked the power to reverse itself and he is not an appellate Court to review the judgment of a trial Court. – Per YARGATA BYENCHIT NIMPAR, J.C.A.
JURISDICTION IS FUNDAMENTAL TO ADJUDICATION
Jurisdiction is extrinsic and intrinsic to adjudication which cannot be inferred but is statutorily donated. The Constitution and other enabling statutes cloth Courts with the requisite jurisdiction to adjudicate on claims. Jurisdiction therefore, is fundamental to any adjudication as held by the apex Court in MUSACONI LIMITED VS. ASPINALL (2013) LPELR-20745(SC) as follows: ‘Jurisdiction is therefore of paramount importance in the process of adjudication. Where there is no jurisdiction in a Court to handle or adjudicate on a matter before the Court, everything done or every step taken in the proceedings amounts to nothing.’– Per YARGATA BYENCHIT NIMPAR, J.C.A.
POTENCY OF EVIDENCE ELICITED UNDER CROSS-EXAMINATION
The above evidence elicited by counsel representing parties in this suit and they are very germane to the determination of the appeal as the supreme Court in GAJI & ORS. VS. PAYE (2003) LPELR-(SC) held on the potency of evidence elicited under cross-examination as follows: ‘It is new learning to me that evidence procured from cross-examination is inadmissible. Evidence procured from cross-examination is as valid and authentic as evidence procured from examination-in-chief. Both have the potency of relevancy and relevancy is the heart of admission in the law of Evidence. Where evidence is relevant, it is admissible and admitted whether it is procured from examination-in-chief or cross-examination.’ – Per YARGATA BYENCHIT NIMPAR, J.C.A.
INTERMEDIATE COURT’S DUTY WHEN NO JURISDICTION EXISTS
Ordinarily, the appeal should end here because this Court also lacks jurisdiction to determine the appeal flowing from the trial Courts lack of jurisdiction. However, as an intermediate Court, the Apex Court admonished the Court to still consider the other issues in the event that the matter goes on appeal to the Apex Court, it will give the Apex Court an opportunity to review the opinion of the penultimate Court for an effectual determination. See the case of BAJEHSON VS. OTIKO (2018) 14 NWLR (PT. 1638) 138 (SC), where it was held that: ‘Whenever the Court of Appeal finds that it has no jurisdiction over an appeal or that the trial Court had no jurisdiction to hear the case it should so decide, and then proceed to hear the appeal on the merits. The rationale for such procedure is that if it fails to decide the other issues, and it is eventually found by the Supreme Court that the Court of Appeal, as the penultimate Court, was wrong in its decision on jurisdiction, the Supreme Court would be denied the benefit of a judgment of the penultimate Court, Such an exercise entails serious expense and delay for the appellant.’ – Per YARGATA BYENCHIT NIMPAR, J.C.A.
INTERPRETATION OF PARAGRAPH 5 OF THE SOUN OF OGBOMOSO CHIEFTAINCY DECLARATION
From the above provision, I agree to the extent that the Kingmakers shall call on the family whose turn it is to produce a candidate and where the candidate is not suitable, shall be sent back to the family to produce another candidate and so on until a suitable candidate is produced. Curiously, as if the drafters of exhibit KB4 envisaged a possibility of dispute, it went further to state conclusively that, ‘In case of dispute among the kingmakers, decision shall be made by majority of votes and in case of a tie, the chairman shall have a casting vote’. The later part of paragraph 5 of Exhibit KB4 is on a rescue mission where the possibility of one candidate cannot be avoided, therefore, it is subject to vote. – Per YARGATA BYENCHIT NIMPAR, J.C.A.
CASES CITED
STATUTES REFERRED TO
1. Chiefs Law, Cap. 28, Laws of Oyo State, 2000
2. Constitution of the Federal Republic of Nigeria, 1999 (as amended 2023)
3. Evidence Act, 2011 (as amended 2023)
4. Interpretation Act
5. Chiefs Law, Cap. 21, Laws of Oyo State, 1978
6. Soun of Ogbomoso Chieftaincy Declaration of 1958
7. Recognized Chieftaincies (Miscellaneous Provisions) Order
8. High Court (Civil Procedure Rules) of Oyo State, 2022
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